Madden and Secretary, Department of Social Services (Social services second review)

[2017] AATA 782

Madden and Secretary, Department of Social Services (Social services second review) [2017] AATA 782 (25 May 2017)

Division:GENERAL DIVISION

File Number:2016/5743           

Re:Christopher Madden  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:25 May 2017 

Place:Sydney

The decision under review is set aside and in substitution, the Tribunal decides that Mr Christopher Madden met the requirements of subsection 198(2) of the Social Security Act 1991 for carer payment, and the requirements of section 954A of the Social Security Act 1991 for carer allowance.

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Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – carer payment – carer allowance – whether person provides constant care to care receiver during the claim period – daily care requirements – care – attention and supervision – bipolar disorder – recurrent lower back strain – decision set aside and substituted

LEGISLATION

Social Security (Administration) Act 1999 Sch 2

Social Security Act 1991 (Cth) ss 197, 198, 954A

CASES

Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689, 7

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Dr L Bygrave, Member
25 May 2017 

INTRODUCTION

1. The applicant, Mr Christopher Madden, applied for carer payment and carer allowance on 2 May 2016 for the care he provides to Mr Robert Hammond. Mr Hammond suffers from mental health issues, chronic lumber back pain and dental issues.

2. On 10 May 2016, the Department of Human Services (the Department) rejected Mr Madden’s application for:

   (a)carer payment because he did not provide ‘constant care’ to another person; and

   (b)carer allowance because he did not meet the daily care requirements.

   These decisions were affirmed in an internal review by the Department on 2 July 2016.

3. Mr Madden appealed to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal and the SSCSD affirmed the Department’s decision on 15 September 2016.

4. On 27 October 2016, Mr Madden applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 28 April 2017. Mr Madden attended the hearing in person and was self-represented. Both Mr Madden and Mr Hammond gave evidence at the Tribunal hearing.

   RELEVANT LEGISLATION AND ISSUES

6. The qualification criteria for carer payment are set out in section 198 of the Social Security Act (the Act). Relevantly, subsection 198(2) provides:

   The person must personally provide constant care for:

   (a)either:

   (i)if the person is the only person providing the constant care – a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; … [emphasis added]

7. The Department accepts, and the Tribunal concurs, that Mr Hammond has the requisite Adult Disability Assessment Tool score prescribed in subsection 198(2). However, the Department submits that Mr Madden did not provide constant care to Mr Hammond.

8. The Department also accepts, and the Tribunal concurs, that Mr Madden satisfies the requirements of subsections 198(3) and 198(4) of the Act.

9. The qualification criteria for carer allowance in a situation where the care provider and the care receiver do not live in the same home are set out in section 954A(1) of the Act, which states:

   A person is qualified for carer allowance for a disabled adult (the care receiver) if:

   (a)the care receiver is an Australian resident; and

   (b)the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and

   (c)the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and

   (d)the care receiver receives care and attention that meet the requirements in subsection (2); and

   (e)the person is an Australian resident; and

   (f)the person's work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and

   (g)neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.

10. The meaning of ‘care and attention’ is set out in subsection 954A(2) as follows:

    The care and attention:

    (a)must address special care needs:

    (i)that the care receiver is assessed under the Adult Disability   Assessment Tool as having; and

    (ii)that relate to the care receiver's bodily functions or to sustaining the care receiver’s life; and

    (b)must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and

    (c)     must:

    (i)       be received by the care receiver from the person alone; or

    (ii)be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and

    (d)must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and

    (e)must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.

11. In accordance with the requirements set out in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Administration Act), Mr Madden must satisfy the legislative requirements as at the date of his claim or within 13 weeks of lodging the claim, that is between 2 May 2016 and 1 August 2016 (the claim period).

12. The determinative issues for the Tribunal are whether:

    (a)Mr Madden was providing ‘constant care’ to Mr Hammond, as set out in subsection 198(2) of the Act, during the claim period; and

    (b)Mr Madden was providing ‘care and attention’ to Mr Hammond, as required by section 954A of the Act, during the claim period.

    Issue 1: Was Mr Madden providing ‘constant care’ to Mr Hammond during the claim period?

13. Section 197 of the Act defines ‘care’ as ‘attention and supervision’; however, the term ‘constant care’ is not defined in the Act.

14. The Guide to Social Security Law (the Guide), which is government policy and should be considered unless there are cogent reasons not to do so,[1] provides the following definition of ‘constant care’ (paragraph 1.1.C.310):

    A carer is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP [carers payment] is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day. [emphasis added]

    [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

15. I also note a previous decision by this Tribunal, which observed:

    The expression ‘constant care’ is not defined in the Act. These words should be given their ordinary English meaning. ‘Care’ may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the ‘care’ be ‘constant’ means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend. [emphasis added][2]

    [2] Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689, 7

16. The application for carer payment and/or carer allowance completed by Dr Mark Strangways-Dixon (general practitioner) on 28 April 2016 stated Mr Hammond has bipolar affective disorder and recurrent lower back strain, and ‘needs constant encouragement and supervision re bipolar’.[3] Dr Strangways-Dixon noted Mr Hammond requires help with personal care, bathing and dressing, and with mobility and stairs; and his behaviour included showing signs of depression, memory loss and withdrawal from social contact most of the time.

    [3] Exhibit T5.

17. The claim for carer allowance and carer payment completed by Mr Madden on 2 May 2016 stated that Mr Madden started to provide care to Mr Hammond on 21 April 2016 and provided 5-7 days care each week.[4] This claim noted that Mr Hammond sometimes requires help to move around the house and with grooming, bathing, eating and taking medication; and described Mr Hammond’s behaviour as often withdrawn from social contact and depressed. In a further statement to Centrelink on 25 May 2016, Mr Madden confirmed he provided 7 days per week care to Mr Hammond from 21 April 2016.[5]

    [4] Exhibit T6.

    [5] Exhibit T10.

18. Mr Madden provided a diary of his care to Mr Hammond from 28 August 2016 to 18 September 2017. This diary shows a general daily pattern of Mr Madden going to Mr Hammond’s apartment about 9am; getting Mr Hammond out of bed if required; making breakfast for Mr Hammond and ensuring he takes medications; taking Mr Hammond to medical appointments during the morning or doing activities such as shopping, washing and cleaning; making lunch for Mr Hammond before leaving Mr Hammond alone in the apartment for several hours during the afternoon; returning to Mr Hammond’s apartment about 5pm to make dinner for Mr Hammond and ensure he takes medications; and leaving Mr Hammond about 7:30pm-8pm. This routine varied depending on Mr Hammond’s health.

19. In response to questions about whether Mr Madden’s activities and engagement with Mr Hammond reflected friendship or companionship, Mr Madden acknowledged that although he may undertake activities such as watching TV with Mr Hammond, the TV programs they watch are based on Mr Hammond’s preferred shows, and he sits with Mr Hammond to monitor him and ensure he does not get upset. He also said that he took Mr Hammond out to a club for his birthday lunch to enable Mr Hammond to feel ‘connected with the world’. He said that he views his role as carer as including to help Mr Hammond to operate in the ‘normal world’ and to take responsibility for himself.

20. At the Tribunal hearing, Mr Madden said that he began caring for Mr Hammond in April 2016 at the request of Mr Hammond’s grandmother, who was becoming too old to regularly care for and see him. Mr Madden stated that when he started caring for Mr Hammond, and when he completed the forms for carer payment and carer allowance in April 2016, he did not completely understand what was involved with caring for Mr Hammond. He also stated that the level of care he provides Mr Hammond has increased since the claim period. His evidence to the Tribunal was that, during the claim period, he cared for Mr Hammond 7 days per week from approximately 9am to 1:30pm and 5pm to 8pm, although I note there were days when he spent more than 12 hours with Mr Hammond. Mr Madden told the Tribunal that since February 2017, he has needed to sometimes stay overnight to care for Mr Hammond due to the deterioration of his back condition. He also said that on some days, he does not leave Mr Hammond during the afternoon.

21. Mr Hammond also told the Tribunal about the care Mr Madden provides to him. Mr Hammond said that before Mr Madden began caring for him he was having ‘bad problems’ because he was not taking his medications, and was wanting to kill himself and hurt people. Mr Hammond said he has bipolar and so he gets depressed, anxious and manic. Although he lives alone, Mr Hammond was unable to tell the Tribunal his home address and said he struggles to remember appointments and to take his medications. He said he has a bad back and sometimes cannot get out of bed. Mr Hammond is unable to cook and if he is hungry and alone, he does not eat. He said that, without Mr Madden’s care, he would not get out of bed. Prior to Mr Madden’s care, Mr Hammond said he relied upon his grandmother and, before then, carers. He has one friend who he sees about every three to six months for about 20 minutes. He said that, apart from his grandmother, his family does not like him or see him.

22. Ms Glenys Clarke (registered psychologist) reported on 12 September 2016 that:

    Mr Hammond requires daily prompts to attend mental health and other appointments and to take his medication. Without the support of his current unpaid carer, Mr Hammond is again placed at significant risk to himself and to others. It was noted that Mr Hammond and his carer to [sic] have good rapport, as Mr Hammond has a history of mistrust of others. He finds it difficult to leave the house, unless accompanied by his carer. He does not have social supports…[6]

    [6] Exhibit T13.

23. A report by Dr Strangways-Dixon on 9 March 2017 stated that Mr Hammond has a serious mood disorder, who has previously attempted suicide about six to seven times. Dr Strangways-Dixon commented that since Mr Madden’s care and assistance, Mr Hammond:

    has been compliant with medication, not had any marijuana, not attempted self-harm, and not acted violently towards anyone… His mental and physical health has improved considerably. If he did not have a full-time carer, I am confident that he will relapse to his old, dangerous and abusive lifestyle.[7]

    [7] Exhibit A1.

24. Based on the evidence before the Tribunal, I am satisfied that Mr Madden was providing active and passive care to Mr Hammond for a significant period every day, which effectively equated to a full-time basis, during the relevant claim period. I further note that due to Mr Madden’s care, which included assisting Mr Hammond in relation to his daily needs and ensuring his stability in terms of taking his medication, Dr Strangways-Dixon observed significant improvements in Mr Hammond’s mental and physical health.

25. I therefore find that Mr Madden was providing constant care to Mr Hammond, as required by subsection 198(2) of the Act, during the claim period.

    Issue 2: Was Mr Madden was providing ‘care and attention’ to Mr Hammond during the claim period?

26. At paragraph 3.6.7.45, the Guide explains the phrase ‘care and attention’ for the purposes of carer allowance and provides (in summary) that:

    ·Care and attention must address special care needs, which includes assistance with bodily functions and care to sustain life. Assistance with ‘bodily functions’ may include:

    oassisting the person to transfer in and out of bed, moving around the home, negotiating stairs and positioning in their chair or bed;

    ohelping with dressing and undressing, bathing and showering, grooming, and assistance with using the toilet;

    oeating and drinking;

    ocommunication;

    ohelping the person take medication.

    Care to sustain life includes supervision to prevent wandering, removing the person from dangerous situations and preventing the person from damaging property or injuring themselves or others.

    ·Care and attention must be received by the care receiver on a daily basis, for a total of at least 20 hours per week.

27. Based on the evidence set out at paragraphs 16 to 23 above, I am satisfied that Mr Madden was providing daily care to Mr Hammond for a total of at least 20 hours per week during the claim period. This daily care by Mr Madden included care and attention to address Mr Hammond’s special care needs, such as bodily functions and care to sustain life. I therefore find that Mr Madden was providing ‘care and attention’, as required by section 954A of the Act, to Mr Hammond during the claim period.

    DECISION

28. The decision under review is set aside and in substitution, the Tribunal decides that Mr Christopher Madden met the requirements of section 198 of the Social Security Act 1991 for carer payment, and the requirements of section 954A of the Social Security Act 1991 for carer allowance.

I certify that the preceding 28 (twenty- eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 25 May 2017 

Date(s) of hearing:	28 April 2017
Applicant:	In person
Solicitors for the Respondent:	Mr S Davidson, Department of Human Services